SYED AHMED Vs. JULAIHA BIVI

JUDGEMENT

(1.) The only question raised in this appeal relates to the validity of a wakfnama executed by one Mahomed Hussain Rowther, a Hanafi Mussalman, since deceased. His widow, the first respondent herein, sued her co-heirs for partition of his estate and for accounts, impugning the validity of the wakf, and the Subordinate Judge of Mayavaram who tried the suit has upheld her claim, finding that the wakf was not valid either under the Mahomedan Law as it was understood before the Mussalman Wakf Validating Act (No. VI of 1913) (hereinafter referred to as the Act) or under the Act. From that decree the first defendant who is one of the trustees of the wakf has brought this appeal.

(2.) The wakfnama (Ex. I) is in Tamil and is called " wakf charity deed." It has five schedules A to E attached to it, of which schedule D specifies the " particulars of charity to be conducted," and the remaining schedules describe the properties, lands, and houses, to which it relates. It recites that those properties had been set apart for " wakf charity " following the practice of our religion and in accordance with Act VI of 1913," and provides that, out of the income derived from the properties at the end of each fasli, the kist, taxes and other charges should be deducted, and the charities referred to in schedule D should be conducted at a cost of Rs. 160 per annum. The wakf's three sons (defendants 1 to 3 in the suit) should " as trustees manage the remaining income after deducting the cost of charity." The income from the lands specified in schedule C should, after deducting expenses, be paid to his four daughters in equal shares during their lifetime and thereafter proportionately to their heirs hereditarily. His wife (plaintiff) should enjoy the shop, item 2 in schedule A, and the lands referred to in schedule E during her lifetime and thereafter these properties shall be added to the charity referred to in schedule D. His descendants should hereditarily conduct the said charity and take only the remaining incomes after dividing them at the end of each fasli. Then follow certain provisions for the devolution of the right to the surplus income and the right of management of the properties, which are not to be alienated or made liable for the debts of any of the descendants. Proper vouchers and accounts are to be maintained in respect of the income and expenditure of " this charity estate," and if any trustee or all the trustees refuse to manage or resign the Civil Court should appoint the Court of Wards or the necessary trustees in the vacant places till another trustee or trustees are available as aforesaid and see that the charity is administered. Should there be any litigation in Court when any injury or loss, etc., is likely to be caused to this deed or a portion thereof or the said charity, the property being charity property, the plaintiff or defendant shall add the Advocate-General as a party or take his opinion and conduct the said suit. The charities specified in schedule D are as follows: In the building constructed by me in the name of T. Muhaitheen Andavar Avergal on the punja land bearing Resurvey No. 22/8 in the Anaikovil village, Valkudi vattam, Nanhilam taluk and referred to in the Bschedule, one Mavulthu and one Hattam, one Hattam in the name of Nabi-nayakam, one Hattam in the name of Shagul Hameed Andavar, one Hattam in the name of Meera Akamad Shakathari Avergal, and one Hattam in my name after my death shall be recited on the full- moon day of every month, i.e.,on the 14 day of the lunar month, at a cost of Rs. 5. On the 10 of Rabilavil of each year Mavulth shall be recited in the name of Nabinayakam in the Kattubapalli at Vijayapuram and food distributed, at a cost of Rs. 100. The learned Subordinate Judge has found that the annual net income of the lands specified in plaint Schedule A-1 (Schedule B of the deed) alone is about Rs. 1,500 and that the provision for the charities costing only Rs. 160 per annum is an illusory trust and cannot be upheld as a valid wakf under the Muhammadan law as expounded by the decisions of the Privy Council before the passing of the Mussalman Wakf Validating Act, 1913. (Vide Mahomed Ahsanulla Chowdhry V/s. Amarchand Kundu (1889) L.R. 17 I.A. 28 : I.L.R. 17 Cal. 498 (P.C.) Abul Fata Mahomed Ishak V/s. Rasamaya Dhur Chowdhri (1894) L.R. 22 I.A. 76 : I.L.R. 22 Cal. 619 (P.C.) and Mujib-un-nissa V/s. Abdur Rahimb (1900) L.R. 11 M.L.J. 58 : 28 I.A 15 : I.L.R. 23 All.233(P.C.).) This conclusion has not been seriously challenged before us by Mr. Venkatarama Aiyar on behalf of the appellant. He contended, however, that, under the Act, the wakfnama was a valid charitable disposition notwithstanding the provisions contained therein for the maintenance and support of the wakif's family and descendants. The question accordingly arises whether the deed, Ex. I fulfils the requirements of the Act.

(3.) The history of that legislation and the controversy which it was designed to set at rest are well-known. That controversy centred round the question as to how far beneficial interests in property settled as wakf could be reserved in favour of the settlor or his family and descendants. Broadly speaking, the decisions revealed two divergent trends of opinion traceable fundamentally to differences of outlook and approach. One line of cases, largely influenced by English ideas of charity and charitable uses and the English law of perpetuities, held that if the gift was in substance to the settlor's own family and not to charitable purposes the wakf was illusory and void. While recognising that Mahomedan law ought to govern a Muhammadan disposition of property and that, according to that law, provisions for the settlor's family might be consistent with the creation of a valid wakf, those decisions required that the dedication must in substance be for the benefit of others and not a mere colourable device for the aggrandisement of one's own family. They refused to act upon the spiritual precepts commending perpetual settlements on one's own children and descendants as pious acts of great religious merit. This view was favoured by the majority of the Full Bench in Bikani Mia v. Shuklal Poddar (1892) I.L.R. 20 Cal. 116 (F.B.) and was upheld by their Lordships of the Privy Council in Abul Fata Mahomed Ishak V/s. Rasamaya Dhur Chowdhri (1894) L.R. 22 I.A. 76 : I.L.R. 22 Cal. 610 (P.C.) affirming the decision in Rasamaya Dhur Chowdhri V/s. Abul Fata Mahomed Ishak (1891) I.L.R. 18 Cal. 399. The other view, for which the dissenting judgment of Ameer Ali, J., in Bikani Mia V/s. Shuklal Poddar (1892) I.L.R. 20 Cal. 116 (F.B.) may well be regarded as the locus dassicus, insisted that the question must be approached purely from the point of view of Islam in which law and religion are closely connected, and that, in determining what are valid objects of wakfs guidance must be sought from scriptural ordinances and works of Mahomedan jurists. The learned Judge held, after an elaborate examination of recognised Islamic authorities, that support of one's own family and descendants was an approved form of charity, and a perpetual settlement of property for such purpose and for the ultimate benefit of the poor or some other pious, religious or charitable object of a permanent nature was valid, although such ultimate trust might not be express but might be implied. Heconcluded his judgment by voicing the protest of his community in the following words : To hold that a wakf the benefaction of which is bestowed wholly or in part on the wakif's family and his descendants is invalid would have the effect, in my opinion, of sweeping away an important branch of Mussalman law with which are associated and intermixed the dearest religious interests bfthepeople. (P. 176.) The protest eventually found an echo in the Council Chamber, and in response to the demand of the community the Legislature passed the Act superseding the Privy Council decisions referred to above and declaring the law more conformably to the views and sentiments expressed in the judgment referred to above.